SZONQ v Minister for Immigration
[2011] FMCA 4
•14 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZONQ v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 4 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Nepal – applicant disbelieved in relation to certain aspects of his claims of past harm – whether the Tribunal failed to give “proper, realistic and genuine” consideration to the applicant’s claims and evidence considered – whether the Tribunal considered irrelevant matters or failed to consider relevant matters considered – whether the Tribunal decision was irrational, illogical or unreasonable considered – whether the Tribunal breached s.425 of the Migration Act 1958 (Cth) considered. |
| Migration Act 1958 (Cth), s.425 |
| Buck v Bavone (1976) 135 CLR 110 R v Australian Stevedoring Industry Board; Ex part Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 |
| Applicant: | SZONQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1605 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 2 December 2010 |
| Date of last submissions: | 2 December 2010 |
| Delivered at: | Sydney |
| Delivered on: | 14 February 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr J R Young |
| Solicitors for the Applicant: | Simon Diab & Associates |
| Solicitors for the Respondents: | Mr A Markus Australian Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1605 of 2010
| SZONQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 29 June 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant had made claims of political persecution in Nepal. The following statement of background facts is derived from the submissions of the parties.
The applicant, a citizen of Nepal, arrived in Australia on 11 July 2009 and applied for a protection visa on 20 July 2009 (Relevant Documents "RD" 1, 3). The applicant claimed, in a statement annexed to his protection visa application, to have a well-founded fear of persecution in Nepal arising from being an activist of the Nepal Students Union, an organisation with ties to the Nepali Congress Party, and to have been attacked and threatened by members of the Young Communist League, a Maoist organisation, during student elections in March 2009. The applicant claimed that he then went into hiding in different parts of Nepal. The applicant had also worked in Nepal for UNESCO and came to Australia to attend a conference sponsored by UNESCO (RD 35-6).
The applicant attended an interview with the Minister’s Department ("the Department") on 12 October 2009 and presented to the Department a number of documents in support of his application (RD 41-102, 116-7). On 2 March 2010, a delegate of the Minister refused the applicant's protection visa application (RD 108-132).
On 26 March 2010, the applicant applied to the Tribunal for review of the delegate's decision (RD 133-137). The applicant was invited to, and attended, a hearing of the Tribunal on 10 May 2010 at which he gave evidence (RD 142, 145). After the hearing, the applicant's migration agent provided to the Tribunal a submission and further material in support of the applicant's claims (RD157-169).
The applicant provided documentary evidence including letters from the Executive Director of UNESCO and Youth Nepal, Professor Hari Budhathoki, and letters from Nepal Student Union outlining the applicant’s role in the March 2009 elections and the events that occurred (RD 180 [25]).
The supporting letters of Professor Budhathoki were checked with him by the delgate as outlined by the Tribunal (RD 181 [26]-[28]).
In a decision dated 29 June 2010, the Tribunal affirmed the decision of the delegate (RD 175-191). A summary of the Tribunal's findings are:
a)it accepted that the applicant was a member of the student wing of the Congress Party, was the Secretary of this group at his university, and worked for the party during student elections in March 2009. It also accepted that the applicant's family were supporters of the Congress Party, had been required by the Maoists to provide support and that his parents had been asked by the Maoists to ensure their children supported the Maoists (RD 187-8, at [68], [70]);
b)it accepted that there were clashes between supporters of the Congress Party and the Maoists at the applicant's university from time to time and that the applicant had held a mainly administrative role in the university elections. It also accepted that a physical conflict broke out amongst students during those elections in which the applicant was injured (RD 188 at [70], [73]);
c)the Tribunal, however, found that the applicant was not a reliable witness on the basis of his confused and unconvincing account of his activities during and after the student elections in March 2009 and that he had exaggerated the seriousness of an incident in which he was involved and fabricated claims of being pursued by Maoists following those elections (RD 187 at [67]). The Tribunal did not accept that the applicant was specifically targeted in the conflict during the elections and did not accept that the applicant or his family received threats from Maoists or their affiliates thereafter given the applicant's role, the fact that he lost the election to the Maoists, his inability to explain why they would continue to be interested in him or why they would not have been able to find him given his continued employment by UNESCO both in his home town and upon relocating to Kathmandu (RD 188-90 at [73]-[74], [77]);
d)the Tribunal considered letters of support from the applicant's employer but gave little weight to them given the nature of the letters and the information contained in them (RD 187-8, at [68]-[69]);
e)the Tribunal did not accept the applicant worked for the Congress Party prior to the 2008 elections nor that he sustained an injury while doing so given his knowledge of the election process and of his changing evidence regarding his injury (RD 188 at [72]);
f)the Tribunal accepted that the political situation in Nepal is uncertain and remains volatile. However, it found that the Congress Party was the main party in the ruling coalition and while the Maoists continue to carry out attacks on people it was not satisfied the applicant would be specifically targeted even if he resumed active involvement in politics (RD 189 at [76]).
The Tribunal was therefore not satisfied that the applicant was a person to whom Australia owed protection obligations and affirmed the decision under review.
The present application
These proceedings began with a show cause application filed on 22 July 2010. On 21 October 2010, pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth) I ordered the Minister to show cause why relief should not be granted in relation to the grounds in an amended application filed on 15 October 2010. Those grounds were further refined in a further amended application filed by leave in court on 2 December 2010. Those grounds are:
1. The Second Respondent failed to give proper, realistic and genuine consideration to the claims and evidence.
Particulars
(a) Failed to give proper, realistic and genuine consideration to the claims and evidence of the applicant on the basis of a finding on the applicant’s credibility;
(b) Failed … to give proper realistic and genuine consideration to corroborative evidence (“the supporting letters”), notwithstanding that it had no basis to determine that the supporting letters were ingenuine or unreliable on the basis of a finding on the applicant’s credibility;
Particulars of Supporting Letters provided by applicant to DIAC
(a) Letters from the Nepal Students’ Union dated 14 March 2009 and 24 March 2009;
(b) UNESCO and Youth Nepal dated 6 July 2009 and 21 April 2009.
2. The Second Respondent considered irrelevant matters and ignored relevant matters.
Particulars
(a) The applicant repeats particulars in paragraph 1.
3. In the premises, the Second Respondent made a determination which was irrational, illogical, not based on findings or inferences of fact supported by logical grounds, and/or manifestly unreasonable and constituted a jurisdictional error.
4. The Second Respondent made jurisdictional error by failing to comply with s.425 Migration Act 1958 (Cth) in that it did not put the applicant on notice that a letter at [RD] 103 found by the delegate to be verified might be treated as provided merely to provide support to the Applicant’s protection visa application.
The evidence and submissions
I received as evidence the book of relevant documents filed on 23 August 2010. I provided the applicant with the opportunity to file and serve a transcript of the Tribunal hearing, together with any further written submissions, by 14 January 2011. I also gave the Minister the opportunity to file and serve further written submissions by 28 January 2011. No further submissions were filed by either party.
The applicant’s submissions in relation to grounds 1 and 2 depend essentially upon the decision of the Federal Court in SZEJF v Minister for Immigration [2006] FCA 724 and SZJSS v Minister for Immigration [2009] FCA 1577 at [38]-[51]. In relation to ground 3, the applicant contends that:
In forming the view that there is not a real chance that the applicant will be seriously harmed by reason of his profile as a student politician, the RRT did not consider the cumulative impact of the applicant’s claims and failed to direct its mind to the appropriate tests provided in Chan v MIEA (1989) 169 CLR 379 where the High Court established that a fear of persecution will be well-founded if there is a real chance that it will occur. This test was expressed by the High Court as follows:
· (per Toohey J at 407) (A real chance) discounts what is remote or insubstantial;
· (per Dawson J at 398) A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent;
· (per McHugh J at 429) An applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be … persecuted… A far-fetched possibility of persecution must be excluded.
The RRT made findings that the applicant is a member of particular social political groups in Nepal that according to the country information are subject persecution by the Maoists and the affiliated Youth Communist League. The RRT noted the volatile circumstances currently experienced in Nepal including the lack of capacity of the various enforcement agencies to ensure security and notwithstanding stated: “while the political circumstances in Nepal remain volatile, the Nepali Congress Party is the main party in the ruling coalition, and the government continues to function despite attacks on people by groups such as the YCL. The Tribunal is not satisfied that there is a real chance that the applicant will be seriously harmed because he is a long-term supporter of the ruling congress Party, or because of his activities in the Congress Party student union, even though he, along with the rest of the population in Nepal, may be adversely affected by the prevailing political uncertainty.” [76]
It is respectfully submitted that such conclusion is irrational in the face of the RRT’s finding in relation to the applicant’s membership to particular social political groups, his political belief and opinions, and the objective events of persecution in Nepal such that the decision which in effect is that the risk of the applicant being persecuted is far-fetched or remote is manifestly unreasonable and the constituted jurisdictional error.
In relation to grounds 1 and 2 the Minister submits:
The particulars stated under these grounds do not identify any claim or claims which it is alleged the Tribunal failed to consider, nor the irrelevant matters which the Tribunal considered. The particulars only refer to the Tribunal failing to weigh supporting letters provided by the applicant to the Department, being letters [one letter and one press release] from the Nepal Student Union and letters from UNESCO and Youth Nepal.
The first respondent does not accept that a failure to give "proper, realistic and genuine consideration" constitutes an independent head of jurisdictional error. The Tribunal is required to consider relevant considerations or the claims which clearly arose on the material before it: Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24, at 39-42, Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1 at [55]-[63], [68]. There is a distinction between the considerations or claims which the Tribunal is statutorily required to take into account and evidence. A misunderstanding of evidence or even the overlooking of evidence does not, of itself and unless it amounts to a failure to consider a claim, give rise to jurisdictional error. Nor is the Tribunal required to refer to every piece of evidence in its written reasons. WAEE v Minister for Immigration and Multicultural Affairs [2003] FCAFC 184 at [45]-[46], MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at [25]-[28], Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [27]-[28]. The determination of how probative the supporting documents were, and the weight to be given to them, was entirely a matter for the Tribunal. To contend that the Tribunal failed to weight [sic] the documents does nothing more than seek merits review of the Tribunal decision.
The formulation of "proper, realistic and genuine consideration" stems from Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291, [1987] FCA 457 ("Khan"), which involved an application brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth), in which Gummow J found that there had been an application of policy without regard to the merits of the case. His Honour observed at 292 [25] that the decision-maker: “was required to give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy”. Nothing said in Khan would enable the expression “proper, genuine and realistic consideration” to allow for a finding of jurisdictional error simply where all that has occurred is the weighing of evidence with which a court disagrees. In SZICT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1144 at [10], Jacobson J observed that the requirement spoken of in Khan “… is limited to the ground of inflexible application of policy. To go beyond this would be to embark upon impermissible merits review”. As the Full Federal Court observed in Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at [65], the formulation cannot legitimately be used as: “a kind of general warrant, in breaking language of indefinite and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinised”. See also Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [46]-[48] and the cases there referred to.
The Minister formally submitted that the decision of the Federal Court in SZJSS was wrongly decided, noting that the High Court had reserved its judgment on an appeal from that decision. The Minister further submits that on the facts of the present case the Tribunal did not fail to consider the supporting letters in its decision.
In relation to ground 3 the Minister submits:
The applicant has provided no particulars of this ground such that any jurisdictional error can be identified. The applicant's written submissions do not further elucidate the basis upon which it is asserted that the Tribunal's decision was irrational or illogical other than to apparently assert that the country information before the Tribunal required the Tribunal to find that any person with the applicant's "particular social political groups" have a genuine fear of persecution. It is not clear to the first respondent what the applicant means by stating (at [32]-[33] of his submissions) that the Tribunal made findings that the applicant is "a member of particular social political groups". The Tribunal did accept, as claimed by the applicant, that he had been a supporter of the Congress party and a member of its student wing. There is nothing in the material before the Tribunal that anyone who is a member of the student wing of the Nepal Congress Party or a supporter of the Congress Party has, by that alone, a well-founded fear of persecution.
Consideration
Grounds 1 and 2
On 15 December 2010 the High Court overturned the decision of the Federal Court in SZJSS: Minster for Immigration v SZJSS [2010] HCA 48. Relevantly, the High Court stated at [23]-[37]:
General principles governing the limited role of the courts in reviewing administrative error have long been identified. As Mason J observed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions" is not a sufficient reason for overturning a judicial decision upon a review. Further, Brennan J said in Attorney-General (NSW) v Quin:
The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
In 1989 with the codification of migration policy the Migration Act was amended significantly. At that time, judicial review of migration decisions was conducted under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act").
Grounds for review under s 5(1) of the ADJR Act include the ground that "the making of the decision was an improper exercise of the power conferred" by the relevant enactment. Section 5(2) provides that the reference to "an improper exercise of a power" includes a reference to "failing to take a relevant consideration into account", "an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power", and "any other exercise of a power in a way that constitutes abuse of the power". Section 5(2)(f) identifies as a ground for review "an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case". Section 6 provides further statutory grounds for review of conduct related to the making of decisions, which include a ground that the making of the proposed decision would be an improper exercise of power conferred by the relevant enactment.
In Khan v Minister for Immigration and Ethnic Affairs, Gummow J considered a migration appeal brought in 1987, when such appeals were decided under the ADJR Act. His Honour construed an improper exercise of power as including a reference to an exercise of a discretionary power in accordance with a rule or policy, without regard to the merits of a particular case. His Honour found that in considering all relevant material placed before him, the Minister's delegate was required to "give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy."
On 1 September 1994, Pt 8 of the Migration Act was introduced. The new Pt 8 scheme for judicial review differed significantly from the provisions of ss 5 and 6 of the ADJR Act; it contained provisions which sought to exclude judicial review of migration decisions on numerous grounds, which included the grounds of failing to take relevant considerations into account and a breach of the rules of natural justice. Whilst recognising that statutory limits were then prescribed which bore upon the construction of improper exercise of power, in Minister for Immigration and Multicultural Affairs v Yusuf, McHugh, Gummow and Hayne JJ observed that jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power.
It is sufficient for present purposes to note that from October 2001, Pt 8 as discussed above was repealed and replaced with the current Pt 8, including the privative clause provisions of s 474, which do not protect decisions involving jurisdictional error or oust the jurisdiction conferred by s 75(v) of the Constitution.
In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs, the Minister accepted that a statutory provision requiring a Tribunal to give an applicant an opportunity to appear before it and give evidence implies that such evidence is to be given proper, genuine and realistic consideration. The Minister reiterated that position in this case.
In Swift v SAS Trustee Corporation, Basten JA (with whom Allsop P agreed) noted Khan's case and said of the language of "proper, genuine and realistic consideration":
That which had to be properly considered was 'the merits of the case'. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review.
The first and second respondents contended that the Tribunal's treatment of the facts, more particularly the letters, was arbitrary, capricious, irrational and unreasonable, and accordingly was inconsistent with the Tribunal's statutory duty to review. It was submitted that the Federal Court's findings of irrationality, unreasonableness (without describing it as such) and a constructive failure to exercise jurisdiction were wholly consistent with the accepted principles governing judicial review.
The Minister contended that the weight to be accorded to the letters, and the factual matters to which they gave rise, were entirely matters for the Tribunal as they concerned the merits of the application. It was submitted that the Federal Court employed the language of "proper, genuine and realistic consideration" to register the Court's response to a weighing of the evidence with which the Court disagreed. This, it was said, does not amount to jurisdictional error of the kind discussed by this Court in Minister for Immigration and Citizenship v SZMDS.
The Minister's submissions on the letters issue must be accepted as on a fair reading of the whole of the Tribunal's decision, when the Tribunal said that it gave the letters "no weight" it was referring to the fact that it did not accept the letters as evidencing that the first respondent was in some danger from the Maoists in Kathmandu. This was in large part because of social and political changes which had occurred since the letters were written. The evidence given by the first respondent, including his evidence about the effect of those changes, undermined his claim of political and social activism, thereby contradicting the support which the letters gave to his assertion that Maoists were continuing to pursue him in Kathmandu. The weighing of various pieces of evidence is a matter for the Tribunal.
It has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it. In referring to "any rational, reasonable approach to the evaluation" and the need for "a proper, genuine or realistic evaluation" of the letters, the Federal Court was registering emphatic disagreement with the Tribunal's assessment of the factual matters to which the letters were relevant. It appears the Federal Court would have weighed the letters differently which seems to suggest that, on the basis of the letters, the Federal Court would have been satisfied that Maoists were pursuing the first respondent in Kathmandu. When employing the formula "proper, genuine and realistic evaluation" in respect of the letters, the Federal Court did not appear to consider that one of the matters against which the Tribunal weighed the letters was the first respondent's evidence of the effects of social and political changes in Nepal.
Whether the letters were "highly supportive" or "powerfully corroborative" (as they appeared to the Federal Court) of the first respondent's claim that Maoists were pursuing him in Kathmandu was a question upon which reasonable minds might come to different conclusions. The Tribunal's preference for other evidence, including the first respondent's own evidence about numerous matters, including the effect of social and political changes from, and since, 2006, over the evidence of the letters written during the first half of 2006, could not be said to constitute a failure to take into account a relevant consideration as canvassed in Peko-Wallsend or Yusuf's case. Nor could it be said to be a failure to respond to a substantial argument thereby giving rise to the kind of error identified in Dranichnikov v Minister for Immigration and Multicultural Affairs.
The conclusion that the Tribunal erred in giving "no weight" to the letters, with the implication that it should have given different, presumably determinative, weight to them, depended on the Federal Court reviewing the factual findings of the Tribunal rather than the process by which it arrived at its conclusions.
Further, the Federal Court's conclusion that the Tribunal erred in this way did not, in the light of the whole of the evidence, require the further conclusion that the result in the Tribunal was manifestly irrational or unreasonable. Nor did it support a finding of any other failure which might be characterised as jurisdictional error. (footnotes omitted)
The present case is indistinguishable from SZJSS. I am obviously bound by the decision of the High Court and, in consequence of that decision, I reject grounds 1 and 2 in the further amended application.
Ground 3
I likewise reject the contention that the Tribunal’s decision was irrational, illogical or not based on findings or inferences of fact supported by logical grounds and/or manifestly unreasonable. The Tribunal’s relevant findings are set out at [69] of its decision (RD 187-188) where the Tribunal said:
The Tribunal has given little weight to the letters from a representative of the applicant’s employer, Professor hari Prakash Budhathoki, Executive Director, Department of Youth, UNESCO and Youth Nepal, and has preferred the evidence given at the Tribunal hearing by the applicant in relation to his activities. Prof Budhathoki’s first letter, dated 21 April 2009, is a general work reference and makes no reference to any political problems the applicant had in Nepal. It makes no reference to his activities with the Nepal Students’ Union. His second letter is dated 6 July 2009, and makes reference to “many threats from Young Communist League” during the applicant’s work in Pokhara, without being specific about the nature of the threats. Prof Budhathoki states that the applicant was “sentenced to death” in Pokhara, fled to Kathmandu, and was formally transferred there for work purposes. Again, he makes no reference to the applicant’s activities with the NSU, the central claim made by the applicant as the reason for his problems with the Maoists. The applicant has made no claim to have been “sentenced to death”, though he has claimed to have been threatened by his student opponents, rather than in the course of his work for Prof Budhathoki’s organisation. Given the discrepancy between Prof Budhathoki’s comments and the applicant’s account of his experiences, the Tribunal has concluded that the Professor knew little of the detail of the applicant’s activities, but wished to lend his support to the applicant in his application for protection in Australia.
The question of irrationality, illogicality and unreasonableness was reconsidered last year by the High Court in Minister for Immigration v SZMDS[1]. Gummow A-CJ and Kiefel J held that there was illogicality by the Tribunal in making a critical inference, although warning the Court should not “lightly” come to such conclusions (at [23]-[24] and [40]–[42]); Heydon J held[2] that the Tribunal’s reasoning was not illogical (at [75], [77], [84] and [86]); Crennan and Bell JJ found no illogicality in the Tribunal’s decision and effectively held that the test was akin to Wednesbury unreasonableness (at [130]). The approach of Crennan and Bell JJ reflects that of Dixon CJ, Williams, Webb and Fullagar JJ in the Melbourne Stevedoring case,[3] as well as established statements of the scope for judicial review in cases such as the present one (which speak of an opinion that no reasonable decision maker could have formed)[4]. In my view, this is the correct approach.
[1] (2010) 266 ALR 367; [2010] HCA 16
[2] without expressing a view on the issue of general principle
[3] R v Australian Stevedoring Industry Board; Ex part Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100, 117.5, 119.8-120.3, 121.7
[4] R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, 430.7; Buck v Bavone (1976) 135 CLR 110, 118.9; Parramatta City Council v Pestell (1972) 128 CLR 305, 314.5, 327.9, 332.5
In my view, the Tribunal’s analysis of the letters in issue was a reasoned one and, while reasonable minds may differ, the Tribunal’s conclusions were open to it on the material before it.
Ground 4
Finally, the applicant contends that the Tribunal breached s.425 of the Migration Act 1958 (Cth) by not putting the applicant on notice that the letter reproduced at RD 103, and apparently accepted by the delegate, might be treated by the Tribunal as a self serving document. In the absence of a transcript, there is an insufficient evidentiary basis to draw an inference that there was no discussion at the Tribunal hearing of what the Tribunal might make of the letter in question. Even accepting, therefore, that the Tribunal’s view of the letter could be regarded as an essential or significant issue upon which the review might turn[5] the available evidence does not establish a breach of s.425. I reject the fourth ground of review on the basis of insufficient evidence.
[5] See SZBEL v Minister for Immigration (2006) 231 ALR 592
I conclude that the applicant has failed to establish a case of jurisdictional error. The Tribunal decision is therefore a privative clause decision and the application must be dismissed.
I will hear the parties as to costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 14 February 2011
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